American Geological Institute

Government Affairs Program

Update on Hydraulic Fracturing Court Ruling (9-2-97)

IT APPEARS HYDRAULIC FRACTURING WILL NOW BE SUBJECT TO THE SAFE DRINKING WATER ACT

The U.S. Court of Appeals Eleventh Circuit, on August 7th, determined that hydraulic fracturing as employed by the oil and gas industry is subject to underground injection control programs established pursuant to the Safe Drinking Water Act (SDWA). The ca
se was initiated by the Legal Environmental Assistance Foundation (LEAF) in objecting to an order issued by the Environmental Protection Agency (EPA) maintaining hydraulic fracturing did not meet the statutory or regulatory definition of "underground inje
ction."

LEAF initially requested EPA to withdraw approval of Alabama's Underground Injection Control (UIC) program, because the state program did not regulate hydraulic fracturing in coalbed methane operations. According to the SDWA, the state retains primary res
ponsibility for EPA-approved UIC programs unless the EPA rules that the state UIC program does not meet the minimum requirements established under the SDWA. The LEAF request was based upon a claim by a local resident that the quality of water drawn from a
water well had diminished as a result of nearby hydraulic fracturing activity. EPA denied the LEAF petition stating that hydraulic fracturing did not meet the regulatory definition of underground injection. EPA interpreted the UIC regulations as governin
g only those wells whose "principal function" was the injection of fluids into the ground. LEAF contended that congressional intent in the Safe Drinking Water Act was to include any underground injection that would endanger drinking water sources.

EPA has 45 days from the date of the decision to petition for a rehearing, and informal discussions with that agency indicate such an action is being considered. However, should the decision stand, it would have broad implications for the entire oil and g
as industry nationwide. Although the Eleventh Circuit Court determination only affects the states of Alabama, Florida and Georgia, any change in EPA regulations would apply to the entire nation.

All state UIC programs would have to be revised to include hydraulic fracturing as part of their permitting process, or the EPA would have to invalidate the state program. Detailed infor
mation on this case is available on the Emery School of Law website.